The federal government is set to carry out its first execution in 17 years on July 13. Robert Dunham, the executive director of the nonpartisan Death Penalty Information Center, examines research that shows federal death-row prisoners have a high rate of significant impairments and that there is disproportionate racial bias in death penalty usage.
The federal government has scheduled four executions for July and August in an effort to restart executions after a nearly 17-year hiatus. This move is out of step with and in stark contrast to the nation’s 25-year trend away from executions.
Today, 22 states and the District of Columbia no longer allow the death penalty. Another 12 states haven’t carried out an execution in more than a decade. More notable, however, is what the non-partisan Death Penalty Information Center (DPIC), where I am executive director, has found by taking a close look at the ever-shrinking number of individuals who continue to face execution in the U.S., including the four men who face federal execution dates in the next few weeks.
We’ve found that a disproportionate number of individuals executed in the U.S. in recent years share many functional impairments, including severe mental illness, brain damage, or intellectual disabilities, and long histories of childhood trauma and abuse.
A significant portion were not yet adults when the crimes occurred, with many aged 21 and under. Race continues to play a significant role in who is executed. A new analysis conducted by DPIC shows that these factors are also prevalent among those sentenced to death in the federal system.
Troubling Pattern of Functional Impairments
We looked at publicly available data previously collected by the Bronx Defenders, as well as other recently filed case pleadings, and found some troubling patterns regarding who is on the federal death row. We found that more than 85% of those facing federal execution have at least one serious impairment that significantly reduces their culpability, and 63% had two or more of these impairments.
Given we had to rely almost exclusively on publicly available data—often before competent lawyers had become involved in the cases—these figures likely underestimate the true rate of impairment.
Our research shows that approximately three-quarters of federal death-row prisoners have documented histories of childhood trauma and abuse. Daniel Lewis Lee, who faces the first execution on July 13, endured chronic violence in his home and at the adolescent mental health facilities to which he was sent by his abusive stepfather. Several beatings he suffered as a youngster were so intense, he thought he would die. The unrelenting abuse continued in the institutions, too, starting on his very first day, when he was hit in the head with a brick.
Approximately half of federally death-sentenced prisoners exhibit signs of severe mental illness. Wesley Purkey, who is scheduled to be executed on July 15, suffers from the combined effects of Alzheimer’s disease and dementia, schizophrenia, and a lifetime of trauma. His reduced cognitive abilities have left him unable to comprehend why the federal government plans to execute him. Even though he long ago accepted responsibility for the crime that put him on death row, he no longer has any rational understanding of why the government plans to kill him.
Family dysfunction, including alcoholism, is also common in the families of those on federal death row. Dustin Honken, who has a July 17 execution date, was tried and sentenced in proceedings in which the jury never heard available evidence of his severely dysfunctional background or his resulting mental health problems—evidence that is a fundamental ingredient of a competent death-penalty defense. His father was a notorious criminal who enlisted his children to assist in his crimes. Violent and alcoholic, he terrorized Honken as a child, including threatening to kill him. Yet the jury never heard this evidence.
Developmental brain damage, traumatic brain injury, and/or intellectual disability are also prevalent among those federally sentenced to death. We found at least 29% shared these impairments, including Keith Nelson, who is scheduled to be executed August 28.
Like Honken, Nelson’s trial counsel failed to conduct even the most basic life history investigation, depriving his jury of powerful mitigating evidence of his childhood of extreme trauma, deprivation, and neglect. Inexplicably, Nelson’s jury never learned about the significant brain damage he suffered as a newborn, the repeated sexual and physical abuse he endured as a child, and a multigenerational family history marked with severe mental illness.
Our research also showed that nearly one-quarter of the individuals on federal death row are there for crimes that occurred when they were youths aged 21 or under. Forty-two percent—including Lee, Honken, and Nelson—were age 25 or younger. This is significant because in 2005 the U.S. Supreme Court found that the inherently diminished capacities and reduced culpability of juveniles made it constitutionally inappropriate for them to face the death penalty.
Since then, both the law of criminal punishment for youthful offenders and brain science have continued to evolve. Modern neuroscience research has conclusively established that youths and emerging adults are physiologically predisposed to risky, impulsive decision-making because the regions of the brain responsible for executive functioning, impulse control, and rational decision-making don’t fully develop until at least their mid-20s. Youth also have heightened sensitivity to perceived threats. But it is also well documented that they typically “age-out” of this behavior.
Racial Bias
We’ve also found distinct patterns of racial bias, including at the federal level, that reveal whose lives matter most in this country’s capital punishment system. Although this issue is masked by the deliberate choice of four white prisoners as the first to be executed, African-Americans are dramatically overrepresented on the federal death row. More than half of those on federal death row are people of color and 42% are Black.
The race of victims matters even more. While about half of all homicide victims nationwide are Black, more than 75% of those executed in the U.S. in the past half-century were condemned for killing white victims. None of the four men facing current execution dates were prosecuted or convicted for killing Black victims
While DPIC takes no position on capital punishment as a practice, it is alarming to discover that even as the number of executions and new death sentences have dropped precipitously across the country, an increasing proportion of those who continue to face execution have severe functional impairments that significantly diminish their culpability. Capital punishment is supposed to be reserved only for those who commit the worst crimes and who are the most culpable. But those on federal death row come from some of the most vulnerable communities in America and, given the extensive evidence of their impairments, it is difficult to see how the vast majority fit those criteria.
Without first honestly confronting and addressing these seemingly intractable issues, resuming federal executions is reckless and arbitrary.
Source: bloomberglaw.com, Robert Dunham, July 8, 2020. Robert Dunham has been executive director of the Death Penalty Information Center since March 2015. A nationally recognized expert on the death penalty, Dunham has 25 years of experience as a capital litigator and teacher of death penalty law, including arguing in the U.S. Supreme Court.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde